Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1887-02-24

structure 1eii, puryinR niRfl N iuo gums ahu
breaking his left thigh bone end doing him,
accordine TO HIS account, other serious In
juries, from the latter Of which be says he
has never entirely recovored and BY reason
of which he states he is unHbia 70 work and
labor ut his calling as before that time he
could do. Conceiving and being advised
by bis counsel that his injuries were not
caused by any act, or defaults of his own,
but were oceasioDed by the inadequate and
insufficient brick wall desefihed, erected
by the defendant through tta servant, the
witness Simpson, who acted epfirely under
its orders, he caused this suit tn besbrought
alleging the aforesaid injuries and that they
arose from the act OF the defendant In
building such wall US that described, and
claiming damages according to his ideas Of
the extent of the calamity which befell him.
The defendant resists this suit entirely,
contending in the flrst place that there was
no fault on its part IN erecting the said wall
of the Dimensions given but II there was
that the defect In 1t, as well as the open end
of the structure, was as Visible and evident
to the defendantast toit; and atwhere such
Is the case, that Is where danger exists as
connected with service to be rendered BY
one employed, which danger is entirely
open to his observation before he under
takes his service, II injury befel him, he
cannot resort to the master for con pensa-
tlon unless he have acontraet guarnnteeiDg
safety--he taking the risk 81 the employ
menfin consideration Of the wages given.
The plaintiffs service as carpenter
upon the building Che was engaged
IN that capacity began on the 2Sth
of July, 1885, when the work upon
the whole had been done except covering
the truss frame with q sheathing of boards
for the stating. This was nearly done the
next day, the plaintiff working as before
mentioned, when, at about 2 O'Clock In the
oftarpoa,, 40 fbo plofntffT atataa the naaur-
renee took place. The building was being
erected on land OF the defendant over the
creek and within this city. The plans and
specifications for It were made by the de-
fendant's agent Jones.
The facts given you are not in contro-
versy; but as out of some Of them arose
this action, II becomes important that you
should keep them In mind while am put
ting before you the law applicable to them
as understood by the court. This law must
be your guide In reaching a conclusion or
rather in making up your verdict.
The plaintiff and defendant from the time
Of the employment of him by 1t, bore, in
law, the relation OF master and servant
the corporation defendant being the
master and the plaintiff the SER
want. Whenever that relation, OF. status,
exists, the law attaches, to 1t GER
tain eorre1ative duties, or obligations, on
the part of the master TO the servant and
the servant to the master. And there are
also certain implied undertakings between
them. OF the latter is that on the part OF
the master that he will treat his servant
we'll and pay him his just wages, II none
have been especially agreed upon; and, on
the part of the servant, that he Is reason
ably qualified to perform the service he
undertakes. OF the duties which attach to
the relation, there Is, on the part OF the
master, that of providing the servant with
a.. .Aa fr,
work with lin cases where the master sup
plies these) and place Of safetyto work In,
or upon, and Of keeping him from exposure
to danger while at work, from any causes
or sources within the control OF the master,
and not incident to the employment or
trade of the servant. The correlative duty
OF the servant is to faithfully perform the
requirements OF his service to his master
which no has undertaken, and In so doing,
to obey and observe all orders of legal,
proper and suitable nature, with respect to
his service. These exist without any
special contract between the parties; for
they are legal duties imposed by the system
OF law by which our rights are recognized
and secured to as.
It follows, from this statement, brief but
I hope sufficiently plain to be easily under
stood, that when on either side any OF these
duties are disregarded, or not performed,
and tho party entitled to their observance
or performance suffers injury thereby, he
Is entitled to an action In court of law
to recover such sum OF money, by way OF
| damages, as he can prove to court and
jury that he Is entitled to by reason OF such
default. The plaintiff has shown to you by
the testimony OF himself and his Witnesses
Whit the injury to him was, In consequence
of the Telling Of the hpilding OF the de-
fendhnt, and asks darnaIs : q, 40 amount
| OF $40, GOO at your hands the defendant
| denies that he is entitled to any, insist
| Ing that 1t was the duty OF the plaintiff
to take notice of the structure he was
to work upon before he assembled to
its roof; and, though denying that the
| defendant had any reason to believe
that that the ttifft3 brick van was unsafe, 1t Is
claimed and insisted upon that any want Of
safety that attached to 1t, wass as open tc
observation by the plaintiff ,hs by the de.
| fendant. Il Is certainly true, as u general
proposition - that when ono voluntarily
| undertakes a perilous service at the In
| stance of another--as servant Tor master
and the peril is either as well known tc
the former as the latter, or by the exercise
of prudent care on the part OF the formel
| (and which 1t was his duty to take) he NIGH
become acquainted with it, hS will have nc
| right to an action against his master II he
| be injured while In the performance Of suct
service. Why? Because he ls held TO have
undertaken the risk Of the peril attendant
i upon the service, and was paid for taking
1t. A man offers himself, for illustration
TO farmer as a competent person to feed {
wheat machine, "a dangerous service, ant
is employed for that purpose. III he b'
| injured in this service, he cannot recover
| from his employer, unless he can show tina
there was defect In the machine known t
/ the latter, and which was not disclosed II
him, or which was not such a one as wa
obvious to a person acquai nted with thu
serviee-and that the injury was caused b.
such defect. This rule for a case OF tina
sort will apply to all enplpyments wher
the service Is of such nature as neeessaril.
requires at the hands Of q servant that h
should make previous examination befor
he undertakes that service, unless the mas
ter has undertaken specially that he will
guarantee him against all danger from II
The servants duty, to the extent to whicl
It goes, is In that respect OF equal obliga
tion with that OF the MASTER. Such rule
however, may be extended too far: and, II
our opinion, will be extended too far, when
ever there is required the same degree o
circumspection on the prt OF servan
entering a service q part of the duties o
which with respect to their nature ant
quality are not at all within the scope Of hi
Undertaking, as there would be where tn
danger encountered Is that ordinaril,
incident to his special employment. Sucl
danger, in this sense, is not that resulting
from the negligent or insufficient perform
ance of duty by another, unless his atten
tion is either called to 1t particularly, or
is 30 obvious as to compel him to notice Il
part of the master OF which have befor
spoken. II the injury Is caused Gas in thi
case the plaintiff claims 1t to have beei
from the falling of the entire structure froI
the alleged insufficient BRICK walD by dis
tinct part of the general work done b,
other servants, the duty ofprudent caution
or eircumspection, did. net rest with tn
same weight upon the injured servant as
would have done, II his injury had beel
occasIoned by defective work or materia
within his own particular line of Labor
Against the former he has the MASTER
duty, before spoken of, to protect him
from which the master cannot be reltevet
by claiming that knowledge Of the DANCE
from such other work was as open to tn
servant as to him, unless II was so obviou
as to fasten the servant with knowledge of
In this case the brick wall was, by the acc
dent that befel the building, shown accord
ing to the plaintiffs proof II you believe Il
to be unfit for the service cast upon 1t; bu
no one called the attention. OF theservant
the fault of lt in that respect; and his pal
ticular employment Of carpenter, does nc
! appear to us to have required OF him tina
he should notice the wall to see whether
was capable OF sustaining him safely Will
he was at work upon 1t, especially a
most OF the service upon the roc
In his line had SO far progressed
that but little was lecessary to
done to complete the carpenters work er
tlrely upon he roof. In the view we TAX
of this case, he was, under the facts an
circumstances proved ON 10th sides, no ma
J bound to inspect the wall OF that buildin
before he went upon the ioof TO aseertai
the safety of relying upon lt, than would u
engineer about to take service with raj
road company be bound before doing SO, !